A person is not guilty of murder if he causes death while exercising the right of private defence, but he may be guilty of culpable homicide not amounting to murder if he exceeds the right of private defence.

Goswami, C.J. :- This appeal is against conviction under Section 302, Indian Penal Code and sentence of rigorous imprisonment for life.

2. Prosecution evidence discloses that on the night of 22nd August, 1965 at about 2-3 a.m. hulla was raised by the accused crying 'thief, thief'. Phanidhar (P.W. 1), a neighbour of the accused and relation, went out and met the accused who told him that he had cut a thief. He then along with the accused and another Dimbeswar went to Padmeswar Gaonbura (P.W. 3) aroused him from sleep. The accused told the Geonbura that he had cut a thief with the dao which he was carrying at that time and showed it to the Gaonbura. The gaonbura then, came to the place of occurrence with them and found the dead body of the deceased Tepuram lying near 3/4 nals from the house of the accused. The place where the dead body was found was 20/25 nals from the house of the deceased. Tepuram had bleeding injuries.

3. P.W. 1 lodged the ejahar (Ext. 1) in the thana in the morning and the Sub-Inspector of Police (P.W. 8) came to the place of occurrence, seized the dao produced by the accused's wife and found the dead body of Tepuram lying in a field near the house of the accused. He did not see any blood mark inside the compound of the accused. The field where the dead body was lying adjoins the compound of the accused at a distance of 50 yards from the house of the accused. He seized a dao which was lying under the dead body.

The doctor P.W. 2 (P.W. 4 in the committing court), who held the post-mortem examination, found five deep gaping cut wounds on the left side of the back from scapular region to the limber region transversely one below the other. The measurements are as follows :

(1) 12" x 2" x 4" cutting scapula and the ribs;

(2) 20" x 2 1/2" x 2" cutting the chest wall with protrusion of the lungs;

(3) 9" x 2 1/2" x 4" with protrusion of the lungs;

(4) 10" x 3" x 4" with protrusion of the intestinal coils; and

(5) 16" x 6" x 6" cutting the lumber spine, the left kidney and coils and intestine.

Death, according to the doctor, was due to shock and haemorrage from the injuries described.

P.W. 3 corroborates the above version of P.W. 1 and stated further that the accused told him that thieves came to his house and he (the accused) brandished a dao which cut the thief. He also stated that the thieves cut the corner of the house, the wall of the granary and the door. P.W. 4 is the wife of the deceased. She stated that her husband went to the market on the date of occurrence at about 4 p.m. to buy 'bidi' and match. He did not return from the shop and the following morning received information that he was lying dead in a field. She admits that Phanidhar (P.W. 1) and her husband belong to same family. She could not say who cut her husband. P.W. 5 heard hulla at night raised by the accused and when he went the accused admitted to have cut a thief. He did not go to see who the thief was. P.W. 7 is the officer-in-charge of the Sonari Police Station who sent the accused for recording his confessional statement as he was willing to confess.

The accused admits to have made the confession and the statement therein may be quoted :

Q. Say what you desire to say ?

Ans. On Sunday last, about 1 a.m. some three persons tried to enter my house by cutting the door of the wall. I woke up from sleep and went out with a dao in my hand and began to scuffle with the thieves. Among the three thieves, one of them got injured from my deo and fell down dead. I could not recognise the thief on account of darkness. Afterwards, the rail came and saw that he was no other than Tepuram. Tepuram is my cousin. I had no quarrel with him. I myself surrendered to police."

4. It appears that there is no eye-witness to the occurrence. The statement of the accused is corroborated by the prosecution witnesses examined in the case. The accused claims to have assaulted the deceased with his deo in exercise of his right of private defence. It is really unfor